Industrial Storm Water: Enforcement Trends, Citizen Suits, and Lessons Learned Presented by Michael N. Mills Melissa A. Foster October 29, 2019
R OADMAP • Industrial General Storm Water Permit (“IGP”) – Current Permit and Recent Changes – Citizen Suit Case Studies – Lessons Learned: “We know a thing or two because we’ve seen a thing or two.” • Enforcement Summary 2
IGP: C URRENT P ERMIT • Permit in effect since July 1, 2015 • Expanded scope to thousands more facilities than were required to take action under the 1997 permit • Requires reporting via SMARTS public database • Allows public access to data 3
IGP: 2020 A MENDMENTS • IGP amendment approved in November 2018 • Amendments cover three items: – Implementation of adopted Total Maximum Daily Loads (“TMDLs”) – Federal Sufficiently Sensitive Test Method Ruling – Statewide Compliance Options • Effective on July 1, 2020 4
IGP: 2020 A MENDMENTS • Adoption of TMDL-specific Numeric Action Levels (TNALs) and Numeric Effluent Limitations (NELs) applicable to discharges to water bodies for which industrial storm water waste load allocations (WLAs) have been assigned • “Responsible Dischargers” will be required to comply with the new TMDL-specific discharge requirements 5
IGP: 2020 A MENDMENTS • Source: State Board FAQs re IGP Amendment (Sept. 26, 2018) 6
IGP: 2020 A MENDMENTS • Regions currently affected: – Los Angeles (Region 4) – 26 TMDLs – San Diego (Region 9) – 7 TMDLs – Bay Area (Region 2) – 3 TMDLs – Santa Ana (Region 8) – 1 TMDL • Source: Attachment E to 2018 IGP Amendment 7
IGP: 2020 A MENDMENTS • Incorporates federally required testing methods adopted by EPA in 2014 • Specifically, Dischargers must use analytical test methods that are sufficiently sensitive to measure or detect pollutants at or below the applicable water quality criteria, action level, or effluent limitation 8
IGP: 2020 A MENDMENTS • Compliance options incentivizing storm water capture: – On-site capture and use, and/or infiltration of industrial storm water discharges, up to and including the 85th percentile 24-hour daily storm volume; or – Participation in agreements to capture and use, and/or infiltrate industrial storm water discharges, up to and including the 85th percentile 24-hour daily storm volume, off-site as approved by the applicable RWQCB 9
IGP: C ITIZEN S UITS • “Any citizen” can sue for alleged IGP violations • Process and observations: – 60-day Notice of Intent to Sue – Citizen suits used to acquire information about company operations • Site inspections • Document requests • Reports 10
IGP: C ITIZEN S UITS • “We know a thing or two because we’ve seen a thing or two.” • First citizen suit in 1997 – California Sportfishing Protection Alliance – challenging abandoned mining properties in the Sierra Foothills – No SMARTS – Fewer suits 11
IGP: C ITIZEN S UIT C ASE S TUDIES • “Ripped from the headlines.” • Environmental Defense Center v. Vintage Production California LLC , Case No. CV12-4030 JAK (SSx) (C.D. Cal.) • Newspaper article on hydraulic fracturing at the Grubb-Rincon Oil Field • End result: Consent Decree with Commitment that oil company would not use hydraulic fracturing in the oil field 12
IGP: C ITIZEN S UIT C ASE S TUDIES • “No good deed goes unpunished.” • San Joaquin Raptor Rescue Center and Protect Our Water v. XYZ Manufacturing Co., LLC , Case No. 1:18-cv-00522-DAD-SKO (E.D. Cal.) • Level 2 ERA and everything done according to permit – publicly available on SMARTS • End result: Consent Decree with an Action Plan to look over company’s shoulder 13
IGP: C ITIZEN S UIT C ASE S TUDIES • “Quid Pro Quo Harassment.” • Environmental Defense Center v. California Resources Production Corporation, Case No. 2:16-cv-02325-GW-RAO (C.D. Cal.) • Trust for Public Lands attempting to secure conservation easement over lands in which defendant owned mineral rights that could be developed in future • End result: Consent Decree with an option to later acquire surface rights to limit mineral development on unrelated lands 14
IGP: C ITIZEN S UIT C ASE S TUDIES • “If you can’t beat ’em, join ’em.” • Puget Soundkeeper Alliance v. Pierce County Recycling, Composting and Disposal LLC, et al., Case No. C17-5731-BHS (W.D. Wash.) • Puget Soundkeeper brought suit concerning violations at landfill that were difficult and costly to correct and refused to settle • End result: Brought matter to state regulators and negotiated an agreed-upon order with the state that mooted most of the plaintiff’s action 15
IGP: C ITIZEN S UITS , L ESSONS L EARNED • SMARTS exposes all of your dirty laundry to potential plaintiffs • Know your enemies • If you are sued, try to find out what is motivating the lawsuit – usually it is something besides your compliance with the IGP • Don’t be afraid to involve state regulators if you are being extorted by an abuse of the citizen suit provision 16
S TATEWIDE E NFORCEMENT O VERVIEW FY 2017-18 (IGP & CGP) • # of Informal Actions: 1,381 • # of Compliance Actions: 1,917 • # of Penalty Actions: 60 17
S TATEWIDE E NFORCEMENT O VERVIEW FY 2017-18 (IGP & CGP) 18
S TATEWIDE E NFORCEMENT O VERVIEW FY 2017-18 (IGP & CGP) • Data Source: CIWQS and SMARTS Period: July 1, 2017 to June 30, 2018 • Unit of Measure: Number of enforcement actions with an effective date during FY 2017-18 issued for violations of the Construction Storm Water permit and the Industrial Storm Water permit • Source (slides 17-19): https://www.waterboards.ca.gov/about_us/performance_report_1718/enforce/31201_npdes_s w_enf_actions.html 19
IGP: E NFORCEMENT O VERVIEW R EGION 5 (07/01/18 – 06/30/19) • Statewide INDSTW violations from July 1, 2018 to June 30, 2019: 1868 • Central Valley Regional Board (Region 5) violations: 324 – Sacramento (268), Redding (8), Fresno (48) • https://ciwqs.waterboards.ca.gov/ciwqs/readOnly/CiwqsReportServlet?inCommand=reset&rep ortName=PublicVioSummaryReport [Search: region, INDSTW, date range 07/01/18 - 06/30/19; accessed 10/27/19] 20
IGP: E NFORCEMENT O VERVIEW , R EGION 5 (07/01/18 – 06/30/19) • 289 are Class 3 violations for first time or infrequent violators – Pose a minor threat to water quality – Include statutorily required liability for late reporting • 22 are Class 2 violations – Pose a moderate, indirect, or cumulative threat to water quality – Include negligent or inadvertent noncompliance with the potential to cause or allow the continuation of unauthorized discharge or obscuring past violations 21
IGP: E NFORCEMENT O VERVIEW (07/01/19 – 09/30/19) • Statewide INDSTW violations from July 1, 2019 to September 30, 2019: 446 • Region 5 violations: 138 – All violations are within Region 5- Sacramento – 136 Class 3 violations – 2 Class 2 violations • Region 8 (Santa Ana) leads the State with 170 violations – 165 Class 3 violations; 5 Class 2 violations • https://ciwqs.waterboards.ca.gov/ciwqs/readOnly/CiwqsReportServlet?inCommand=reset&reportName=PublicVioSu mmaryReport [Search: region, INDSTW, date range 07/01/19 - 09/30/19; accessed 10/27/19] 22
A DMINISTRATIVE C IVIL L IABILITY O VERVIEW • Online database allows you to search for active, historical, withdrawn, or “all” ACL information by Program type (i.e., “INDSTW”, “CONSTW”, etc.) • For July 1, 2018- June 30, 2019: – Pending/Completed INDSTW Statewide ACLs total $48,773 – Regions involved: Central Coast (Region 3); Santa Ana (Region 8) • https://ciwqs.waterboards.ca.gov/ciwqs/readOnly/summACLRepSearch.do [Search: All, INDSTW, both; accessed 10/27/19] 23
IGP: ACL O VERVIEW 07/01/18 - 06/30/19 24
IGP: ACL O VERVIEW FY 2017-18 • For July 1, 2017- June 30, 2018: – Pending/Completed Statewide ACLs total just over $188,000 across 15 actions • $117,500 SEP is an additional component of a Region 2 ACL – Regions involved: San Francisco (Region 2); Central Coast (Region 3); Los Angeles (Region 4); and Santa Ana (Region 8) • https://ciwqs.waterboards.ca.gov/ciwqs/readOnly/summACLRepSearch.do [Search: All, INDSTW, both; accessed 10/27/19] 25
IGP: ACL O VERVIEW FY 2017-18 26
S WITCHING G EARS : CGP: T HE N EXT I TERATION • Current Construction General Permit (CGP) originally took effect on July 1, 2010 • Next round of CGP revisions will include implementation of TMDLs • Fall/Winter 2019 - Anticipated release of proposed revised CGP • Possible adoption of new permit after public comment period, early 2020? 27
CGP: T HE N EXT I TERATION 28
IGP: H OW C AN W E H ELP ? • Collaborate on strategy (attorney work product confidentiality) • Carefully review all documents before filing with SMARTS • If you receive a 60-day notice: – contact your trusted advisors immediately (attorney, storm water professionals, etc.) – A valid lawsuit cannot be filed until the 60 days have passed so take the time to correct any violations and develop a strategy for a potential citizen suit 29
C ONTACT INFORMATION Stoel Rives LLP 500 Capitol Mall, Suite 1600 Sacramento, CA 95814 P: 916.447.0700 F: 916.447.4781 michael.mills@stoel.com; 916.319.4642 melissa.foster@stoel.com; 916.319.4673 30
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